# Government Employees Insurance Co. v. David Kalin, M.D.

> District Court, M.D. Florida · March 2, 2022

URL: https://www.frixlaw.com/law-library/cases/10109595

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 2, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

GOVERNMENT EMPLOYEES
INSURANCE CO., GEICO
INDEMNITY CO., GEICO
GENERAL INSURANCE COMPANY
and GEICO CASUALTY CO.,

Plaintiff,
v. Case No. 8:21-cv-2556-VMC-JSS
DAVID KALIN, M.D., et al.,

Defendants.
______________________________/
ORDER
This matter is before the Court on consideration of
Defendant Marie Antoinette Brister’s Motion for Partial
Dismissal of Complaint (Doc. # 80), filed on January 31, 2022.
Plaintiffs GEICO Casualty Co., GEICO General Insurance
Company, Geico Indemnity Co., and Government Employees
Insurance Co. responded on February 4, 2022. (Doc. # 88). For
the reasons that follow, the Motion is denied.
I. Background
According to the complaint, Plaintiffs (collectively,
“GEICO”) initiated this action on November 1, 2021, asserting
numerous claims against numerous healthcare providers. (Doc.
# 1). The main theory of the case is that these healthcare
providers have been submitting allegedly fraudulent and
unlawful personal injury protection insurance (“PIP”) bills
to GEICO for reimbursement.
Under Florida’s No-Fault Law, “a health care services
provider who possesses an assignment of PIP Benefits from an
Insured and who provides medically necessary health care
services to an Insured may submit claims directly to an
insurance company in order to receive payment for medically

necessary services.” (Id. at 6). “In order for a health care
service to be eligible for PIP reimbursement, it must be
‘lawfully’ provided, medically necessary, and the bill for
the service cannot misrepresent the nature or extent of the
service that was provided. Insurers such as GEICO are not
required to pay anyone who knowingly submits a false or
misleading statement relating to a PIP claim or charges.”
(Id.). “In addition, the No-Fault Law prohibits PIP
reimbursement for massage or for services provided by
unsupervised massage therapists.” (Id. at 7).
Also, under Florida’s Health Care Clinic Act (the

“Clinic Act”), “clinics operating in Florida without a valid
exemption from the licensing requirements must – among other
things – appoint a medical director who must ‘[c]onduct
systematic reviews of clinic billings to ensure that the
billings are not fraudulent or unlawful,’ and take immediate
corrective action upon discovery of a fraudulent or unlawful
charge.” (Id. at 8). “Pursuant to the Clinic Act, ‘[a] charge
or reimbursement claim made by or on behalf of a clinic that
is required to be licensed . . . but that is not so licensed,
or that is otherwise operating in violation of this part . .
. is an unlawful charge.’” (Id.).
GEICO alleges that all Defendants participated in

similar types of fraud. That is, “each of the Defendants
caused GEICO to be billed for a limited range of Fraudulent
Services, namely purported: (i) initial patient examinations;
(ii) follow-up patient examinations; and (iii) physical
therapy services. As set forth in Exhibits 1 – 5 [to the
complaint], the purported physical therapy services
constituted the vast majority of the Fraudulent Services
billed through each of the Clinic Defendants to GEICO.” (Id.
at 13).
Defendant “Nova Diagnostics was incorporated in Florida
on or about August 1, 2016, purported to be owned and

controlled by Defendant Antonia Guerra [], falsely purported
to have [Brister] and [Defendant] Patrick Lee Agdamag, M.D.
[] as its legitimate medical directors, and was used as a
vehicle to submit fraudulent no-fault insurance billing to
GEICO and other insurers, including billing for Fraudulent
Services that purportedly were performed” by Brister and
others. (Id. at 5). Brister “never genuinely served as medical
director[] for . . . Nova Diagnostics. Instead, from the
beginning of [her] association[] with [Nova Diagnostics],
[she] ceded all day-to-day decision-making and oversight
regarding healthcare services to the respective Clinic Owner
Defendant[] and their associates.” (Id. at 11).

Brister allegedly “(i) never ensured that all health
care practitioners at . . . Nova Diagnostics had active
appropriate certification or licensure for the level of care
being provided; (ii) never conducted systematic reviews of .
. . Nova Diagnostics’ billings to ensure that the billings
were not fraudulent or unlawful; and (iii) never even made
any attempt to discover the fraudulent and unlawful charges
submitted through . . . Nova Diagnostics, much less take any
immediate corrective action.” (Id. at 11-12). Brister, and
the other Defendants associated with Nova Diagnostics, caused
Nova Diagnostics to unlawfully bill GEICO for physical

therapy services that were provided by massage therapists,
and permitted Nova Diagnostics to falsely represent in its
billings that Defendant Kalin had either personally performed
or directly supervised the performance of the putative
physical therapy services. (Id. at 14-22). Brister also
allegedly caused Nova Diagnostics to routinely bill GEICO for
medically unnecessary services or services that never
actually were provided at all. (Id. at 24-78).
The complaint asserts the following claims against
Brister: (1) violation of RICO, 18 U.S.C. § 1962(c) (Count
26); (2) violation of RICO’s conspiracy provision, 18 U.S.C.
§ 1962(d) (Count 27); (3) violation of the Florida Deceptive

and Unfair Trade Practices Act (Count 28); (4) common law
fraud (Count 29); and (5) unjust enrichment (Count 30). (Doc.
# 1).
Brister now moves to dismiss two of the counts asserted
against her: the RICO conspiracy claim and the unjust
enrichment claim. (Doc. # 80). GEICO has responded (Doc. #
88), and the Motion is ripe for review.
II. Legal Standard
On a motion to dismiss pursuant to Rule 12(b)(6), this
Court accepts as true all the allegations in the complaint
and construes them in the light most favorable to the

plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250,
1262 (11th Cir. 2004). Further, the Court favors the plaintiff
with all reasonable inferences from the allegations in the
complaint. Stephens v. Dep’t of Health & Human Servs., 901
F.2d 1571, 1573 (11th Cir. 1990). But,
[w]hile a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted). Courts are not “bound to accept as true
a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986). The Court must limit its
consideration to well-pleaded factual allegations, documents
central to or referenced in the complaint, and matters
judicially noticed. La Grasta v. First Union Sec., Inc., 358
F.3d 840, 845 (11th Cir. 2004).
III. Analysis
A. RICO Conspiracy
The federal RICO statute “was enacted in 1970 and
prohibits racketeering activity connected to interstate
commerce.” Cisneros v. Petland, Inc., 972 F.3d 1204, 1210
(11th Cir. 2020) (citing Ray v. Spirit Airlines, Inc., 836
F.3d 1340, 1348 (11th Cir. 2016)). The statute reaches beyond
organized crime and should “be liberally construed to
effectuate its remedial purposes.” Boyle v. United States,
556 U.S. 938, 944 (2009) (citation omitted).
Section 1962(d) of RICO “makes it illegal for anyone to
conspire to violate one of the substantive provisions of RICO,
including [Section] 1962(c).” Am. Dental Ass’n v. Cigna
Corp., 605 F.3d 1283, 1293 (11th Cir. 2010) (citation
omitted). “The essence of a RICO conspiracy claim is that
each defendant has agreed to participate in the conduct of an
enterprise’s illegal activities.” Solomon v. Blue Cross &

Blue Shield Ass’n, 574 F. Supp. 2d 1288, 1291 (S.D. Fla. 2008)
(citation and emphasis omitted). “A plaintiff can state a
RICO conspiracy claim by showing defendants: (1) agreed to
the overall objective of the conspiracy; or (2) agreed to
commit two predicate acts.” Cardenas v. Toyota Motor Corp.,
418 F. Supp. 3d 1090, 1102 (S.D. Fla. 2019). However, an
agreement “need not be established by direct evidence”; “it
may be inferred from the conduct of the participants.” Id. at
1103; see also Cisneros, 972 F.3d at 1220 (“A RICO conspiracy
can be found through ‘the conduct of the alleged participants
or from circumstantial evidence of a scheme.’” (quoting

United States v. Browne, 505 F.3d 1229, 1264 (11th Cir.
2007))).
Notably, “[u]nlike racketeering claims predicated on
fraud under Section 1962(c), conspiracy claims under Section
1962(d) only need to satisfy Rule 8 pleading requirements.”
Cardenas, 418 F. Supp. 3d at 1103. “However, conclusory
allegations, accompanied by nothing more than a bare
assertion of a conspiracy, do not plausibly suggest a
conspiracy.” Blevins v. Aksut, No. 15-00120-CG-B, 2017 WL
10410658, at *11 (S.D. Ala. Oct. 27, 2017) (citation omitted).
Brister argues that “GEICO fails to provide any factual
allegations supporting the agreement element that is a

necessary part of a RICO conspiracy claim.” (Doc. # 80 at 5).
According to Brister, “[t]he only real factual allegation in
the [c]omplaint indicating any connection between [her] and
the other defendants is the allegation that she was employed
by Nova Diagnostics[] and received compensation. Mere
affiliation or employment however, is insufficient to
establish a RICO violation.” (Id. at 6); see In re Managed
Care Litig., No. 00-1334-MD, 2009 WL 812257, at *6 (S.D. Fla.
Mar. 26, 2009) (“[M]ere opportunity to conspire alone without
direct evidence of agreement is insufficient to infer the
existence of a conspiracy.”).

Here, the existence of a conspiracy has been
sufficiently pled. Brister was a medical director of Nova
Diagnostics and was thus responsible for ensuring accurate
billing. GEICO alleges that Brister “knew of, agreed to and
acted in furtherance of the common and overall objective
(i.e., to defraud GEICO and other automobile insurers of
money) by submitting or facilitating the submission of the
fraudulent charges to GEICO.” (Doc. # 1 at 123). GEICO also
provides extensive examples of these allegedly fraudulently
submitted bills. (Id. at 24; Doc. # 1-5).
This, combined with the allegations that a different
medical director provided an implausible number of physical

therapy services in a one-day period and that virtually every
patient at Nova Diagnostics was subjected “to a medically
unnecessary course of ‘treatment’ pursuant to pre-determined,
fraudulent protocols” (Doc. # 1 at 15, 24), is sufficient to
raise a reasonable inference of a conspiracy to submit
fraudulent bills. See Gov’t Emps. Ins. Co. v. AFO Imaging,
Inc., No. 8:20-cv-2419-VMC-CPT, 2021 WL 734575, at *1, 9 (M.D.
Fla. Feb. 25, 2021) (denying motion to dismiss RICO conspiracy
claim where GEICO alleged that defendant clinics and false
medical directors submitted or caused to be submitted
thousands of PIP insurance charges for medically unnecessary

MRIs and “allegedly operated in violation of Florida law
because their medical directors failed to properly perform
their duties”); see also Bradley v. Franklin Collection
Serv., Inc., No. 5:10-cv-01537-AKK, 2011 WL 13134961, at *9
(N.D. Ala. Mar. 24, 2011) (“From these allegations, the court
infers that the [defendants] may have agreed to participate
in the racketeering activity. Whether plaintiffs can
ultimately prevail on this claim is an issue that is not
determinative at this juncture. Rather, the relevant inquiry
here is simply whether plaintiffs have pled a plausible claim.
As it relates to [Section] 1962(c), the answer is yes.
Accordingly, the motion is denied as to the claim that

defendant conspired to violate [Section] 1962(c) in violation
of [Section] 1962(d).”).
The Motion is denied as to this claim.
B. Unjust Enrichment
To state a claim for unjust enrichment under Florida
law, GEICO must sufficiently allege the following elements:
“(1) [the] plaintiff has conferred a benefit on the defendant,
who has knowledge thereof; (2) [the] defendant voluntarily
accepts and retains the benefit conferred; and (3) the
circumstances are such that it would be inequitable for the
defendant to retain the benefit without first paying the value

thereof to the plaintiff.” Muy v. Int’l Bus. Machs. Corp.,
No. 4:19-cv-14-MW/CAS, 2019 WL 8161745, at *1 (N.D. Fla. July
19, 2019) (quoting Agritrade, LP v. Quercia, 253 So.3d 28, 33
(Fla. 3d DCA 2017)).
Brister argues this claim, which was asserted against
her and the other Nova Diagnostics Defendants, must be
dismissed because it “is not independent from the allegedly
wrongful conduct by the Nova Diagnostics Defendants, and it
was not pled in the alternative.” (Doc. # 80 at 7). Brister
relies in part on dicta in two Eleventh Circuit opinions, in
which that court quoted a law review article: “As soon as [a]

claimant relies on a wrong [to supply the unjust factor], the
right on which he relies arises from that wrong, not from
unjust enrichment.” Guyana Tel. & Tel. Co. v. Melbourne Int’l
Commc’ns, Ltd., 329 F.3d 1241, 1245 n.3 (11th Cir. 2003)
(quoting Peter Birks, Unjust Enrichment and Wrongful
Enrichment, 79 Texas L. Rev. 1767, 1783 (2001)); see also
Flint v. ABB, Inc., 337 F.3d 1326, 1331 n.2 (11th Cir. 2003)
(“The law of unjust enrichment is concerned solely with
enrichments that are unjust independently of wrongs and
contracts.” (citing 79 Texas L. Rev. at 1783)).
Many district courts have embraced this language and

dismissed unjust enrichment claims premised on wrongful
conduct, although some courts disagree with this approach.
See, e.g., AIM Recycling Fla., LLC v. Metals USA, Inc., No.
18-60292-CIV, 2019 WL 1991946, at *1-2 (S.D. Fla. Mar. 4,
2019) (“A number of courts hold that a claim of unjust
enrichment may not be predicated on a wrong committed by a
defendant. . . . However, other courts reject this position,
and maintain that Florida law makes no distinction between
wrongful enrichment and unjust enrichment; these courts hold
that a claim of unjust enrichment may be predicated on a
wrong.”); Delta Air Lines, Inc. v. Network Consulting
Assocs., Inc., No. 8:14-cv-948-SCB-TGW, 2014 WL 4347839, at

*10 (M.D. Fla. Sept. 2, 2014) (“The Court agrees with the
Millennium Defendants that an unjust enrichment claim under
Florida law should be dismissed. This is because there is a
difference between unjust enrichment, which refers to
mistaken transfers, and wrongful enrichment, which refers to
wrongful takings.”).
In response, GEICO contends first that, “with the
allegations in [its] [c]omplaint entitled to the benefit of
every reasonable inference, [the] unjust enrichment claim is
pleaded in the alternative to its claims alleging wrongful
conduct.” (Doc. # 88 at 15). The Court agrees. See AIM

Recycling Fla., LLC, 2019 WL 1991946, at *2 (“The Court notes
that Plaintiffs’ claim of unjust enrichment is not as clearly
pled in the alternative as it could be. Nevertheless, viewing
the pleading in the light most favorable to the non-moving
party, the Court holds that Plaintiffs’ unjust enrichment
claim is adequately pled in the alternative in anticipation
of Defendants claiming that they committed no wrong, and will
deny the instant Motion [] as to Plaintiffs’ unjust enrichment
claim.”). Although GEICO could have more clearly pled the
unjust enrichment claim in the alternative, the Court accepts
the claim as having been pled in the alternative to the other
claims premised on wrongful conduct. Thus, even assuming that
an unjust enrichment claim may not be predicated on wrongful
conduct, dismissal is not warranted.
The Motion is denied as to this claim.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
Defendant Marie Antoinette Brister’s Motion for Partial
Dismissal of Complaint (Doc. # 80) is DENIED. Defendant’s
answer to the complaint is due within fourteen days of the
date of this Order.
DONE and ORDERED in Chambers in Tampa, Florida, this 2nd
day of March, 2022.

VIRGINIA M. HERNANDEZ’*COVINGTON
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10109595. Public record. Not legal advice.